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Causes of Anesthesia Mortality

Ken Margolin — Tue, 30 Jan 2007 07:00:00 GMT

Despite the fact that the anesthesia profession led the way in medical error reduction techniques, there are still too many anesthesia deaths and serious injuries. When anesthesia malpractice occurs, the results are often catastrophic. With general anesthesia, the patient is helpless. Serious anesthesia errors can deprive the brain of oxygen, causing irreversible damage within minutes or result in other severe respiratory harm - for example, lung damage due to aspiration. Some errors that continue to cause death in anesthesia include: (1) misplacement of the endotracheal tube into the esophagus instead of the trachea (oxygen does not get to the lungs, and thus not to the heart or brain); (2) aspiration of noxious contents into the lungs (causing lung swelling and possible failure); (3) inadequate monitoring of oxygen saturation level of the blood (if a problem arises, the results may be fatal or irreversible damage before corrective action can be taken); (4) administration of excessive amounts of anesthesia (potentially causing cardiac arrest or other problems); (5) failure to have personnel adequately trained with proper treatment agents, to deal with an emergency if one occurs. Each of the causes just listed can be prevented if proper techniques, monitoring, and training are employed.

Originally posted at InjuryBoard by Ken Margolin

Deadly Medication Errors

Ken Margolin — Fri, 14 Sep 2007 18:00:00 GMT

The problem of medication errors has by now been well-reviewed, and efforts to minimize such errors are underway in hospitals and doctors' offices across the country. Nevertheless, the problem of medication errors has proven to be a very stubborn one. In his groundbreaking book, "To Err is Human," Lucien Leape, M.D., estimated that medication errors caused approximately 98,000 deaths per year. Given that the 40,000 +/- highway deaths each year, is often described as "carnage" on the roads, 98,000 is a sobering number.

A study reported earlier this year reviewed medication errors made on patients undergoing surgery. Astoundingly, the study estimated that 5% of adults and 12% of children suffered harm in surgery-related medication errors. Painkilling medications and antibiotics were responsible for a significant share of serious harm. As is the case in other areas of medical negligence, failures of communication caused many of the problems. The danger was particularly acute when various medical teams not working on the patient at the same time, were required to communicate effectively. Examples given were hand offs of patients from the preoperative team to the operating room team, and from the operating room to nurses in the recovery room or on the ward. These failures of medical communication will continue until the notion of patient treatment as a true team effort, is taken seriously and implemented across disciplines and hospital staffs and departments.

For more information on this subject matter, please refer to our section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Ken Margolin

More on Medical Miscommunication

Ken Margolin — Sun, 07 Jan 2007 09:00:00 GMT

The image is familiar from television and real life alike: doctors, nurses, orderlies, scurrying through maze-like hospital hallways, off to one task or another. The size and varied crises faced in hospitals makes a certain amount of apparent chaos inevitable. When there is real disorganization, though, the results can be tragic. Miscommunication between medical professionals remains one of the most significant causes of medical malpractice causing serious harm to patients.

As discussed in yesterday's blog, anesthesia mistakes caused by miscommunication, despite all the advances in error-prevention that profession has made, remains an area of potential danger. Most patients may not realize that it is not unusual for 3 different anesthesiology professionals to be involved in the administration of anesthesia. Pre-surgical exam of the patient may involve a nurse anesthetist and anesthesiologist, while the surgical anesthesiologist may be someone different. According to standards of the American Anesthesiology Association, the anesthesiologist in charge must prepare a written anesthesiology plan before any anesthetic medication is administered. If all relevant medical professionals treating the patient read the anesthesiology plan, a serious anesthesia error due to miscommunication should be very unlikely. In reality, though, sometimes plans are not prepared or are written illegibly or are so skeletal that it is easy to mistake the type and level of anesthesia that will be administered.

Another are of hospital miscommunication that can cause problems is between hospital administration personnel and surgeons - particularly in the scheduling of surgery. There have been instances of patients being prepped for surgery with no surgeon available, or insufficient support staff for the operating team because of scheduling miscommunication. Fortunately, these errors usually result in no more than inconvenience, though hospital scheduling errors have at times resulted in serious harm. Communication between medical professionals in a hospital is both a top-down and bottom-up task. The top hospital administrators, as well as department chairs, must constantly work to understand why communication errors occur and to eliminate the causes. Each individual medical professional must understand that miscommunication can harm their patient, and be vigilant to avoid them.

Originally posted at InjuryBoard by Ken Margolin

Charitable Immunity is Unjust

Ken Margolin — Wed, 19 Sep 2007 07:00:00 GMT

Protecting charitable organizations from liability for the negligence of the organization or its employees, may sound noble, but is in fact, unfair. The immunity doesn't really accomplish its goals, and insures that employees of an organization involved in a personal injury lawsuit, will be sued instead of the organization. Here's the way it works in Massachusetts. By statute, M.G.L. c. 231, Â§85K, the liability of non-profit, tax-exempt corporations, for personal injury caused by their negligence, is limited to $20,000. The doctrine never made much sense, since even organizations providing noble services, should be responsible for their actions when they harm others. Now that many "charitable" organizations are economic behemoths, such as major universities and hospitals, with CEOs earning seven figure incomes, the doctrine serves only to harm legitimate plaintiffs and to provide a windfall for the insurance industry. Virtually all viable non-profit organizations carry liability insurance. There is no logical reason why that insurance can't cover the organization as well as its officials and employees, thus protecting the charitable corporation and victims of its corporate negligence.

The charitable immunity doctrine applies only to the organization, not its officials and employees, This guarantees that in a serious personal injury case, the employees will be sued, and the culpable institution will either not be sued or dropped from the case before trial. Juries don't learn of the tort cap, and the risk is too large that they will render a sympathetic defendants' verdict on behalf of the employees and nail the organization, never realizing that only $20,000 can be collected. The doctrine is at its most unjust when there is institutional negligence - for example, inadequate safety policies and procedures - but no readily identifiable, negligent employee. A risk is created that a jury hearing such a case, will let the employee off the hook, all the while wondering why the errant corporation was not made a defendant. Charitable corporations, no less than for-profit corporations, owe a duty of reasonable conduct to the public, and ought to procure sufficient insurance in case their negligence causes an innocent person serious harm. The Massachusetts legislature needs to buck the pressure from the insurance lobby, and abolish the antiquated and unfair doctrine of charitable immunity.

Originally posted at InjuryBoard by Ken Margolin

Medication Errors Due to Dangerous Abbreviations

Ken Margolin — Mon, 18 Dec 2006 07:00:00 GMT

The pharmaceutical industry and medical profession have known for years that the misinterpretation of medical abbreviations can cause injury or death. Fixing the problem is much more difficult than identifying it. Medications are manufactured by any of numerous pharmaceutical companies, and are dispensed by tens or hundreds of thousands of health care professionals.

Names of completely different drugs with different purposes, may be similar, as well as their abbreviations. When handwriting is used, legibility can be a dangerous problem. Imposing absolute uniformity in the use of abbreviations may be an impossible task. The Institute for Safe Medication Practices (ISMP), a non-profit organization dedicated, as its name suggests, to promoting safer medication practices, issued a special alert containing a "Do Not Use" list of 41 abbreviations or dose designations to be avoided. For example, the abbreviation "D/C," seen in innumerable patient medical charts, should not be used. According to ISMP, "D/C" is sometimes intended to mean "discharge," and other times, to mean, "discontinue." A dangerous event can occur when "D/C" followed by a list of drugs, means, discharge with the following medications, but instead is interpreted to mean discontinuation of the medications. "DPT" may be intended to mean demerol-phenergan-Thorazine, but interpreted to mean the diphtheria-pertussis-tetanus vaccine. "HCT" intended to mean hydrocortisone, has been misinterpreted to mean hydrochlorothiazide. The solution in each of the preceding instances, and in many others, is to write out completely that which is intended, rather than to rely on abbreviations. Plain English usually works best to convey meaning. But, abbreviations, dashed onto a medical record, saves time, even though the impression of time-saving, is far more than the second or so actually saved.

The dangers of mis-interpreted medical abbreviations, has been identified by the federal Food and Drug Administration (FDA), as well as by ISMP, and by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), the health care industry's licensing arm. The differences in the lists highlighted by ISMP, FDA, and JCAHO, illustrates how difficult achieving consensus in the use or non-use of abbreviations will be. In contrast to ISMP's list of 41 "do not use" abbreviations, JCAHO currently includes only 7, with another 7 listed "for possible future inclusion in the Official "Do Not Use" list. The FDA "Safety Page," titled, "Stemming Drug Errors from Abbreviations," mentions 18 abbreviations to be avoided. It may well be that one of the ongoing recommendations to reduce a variety of medication errors - changing the relevant culture - might ultimately be the best solution. The message must be drilled into healthcare professionals that hasty entries into a medical chart may have disasterous consequences. Enough time must be spent to make sure that every entry is legible, accurate, and impossible to misinterpret.

Originally posted at InjuryBoard by Ken Margolin

Chiropractic Malpractice

Ken Margolin — Sat, 17 Feb 2007 07:00:00 GMT

Chiropractors can seem to work miracles at times for patients with ailing backs. Some people swear by them and I don't doubt their ability to help in appropriate cases. There have been, however, some cases of horrific chiropractic malpractice, resulting in severe injury, even paralysis or death.

While chiropractors are trained in the mechanics of the body, they are not medical doctors. As is the case with perhaps too many practitioners of various alternative medical techniques, some chiropractors may overestimate the types of conditions their technique can cure. A major category of chiropractic negligence is failure to recognize the need to refer the patient to a medical doctor. There have been cases reported, for instance, of a chiropractor treating a patient for an extended period of time for symptoms that turned out to have been caused by a malignant tumor, cureable early on and fatally metastacized by the time the patient went to a physician.Chirporactors must be alert for alarming symptoms and be ready to refer a patient to a medical doctor in a timely manner if symptoms do not improve or worsen.

A second obvious category of chiropractic malpractice are cases in which manipulation has caused serious nerve damage. As in the case of the need to know when to refer patients to physicians, awareness of the patient's condition is the best prevention of chiropractic injuries from manipulation. Patients who are eldlerly or suffering from degenerative or other serious diseases, may be more fragile and susceptible to serious injury from powerful manipulations of their cervical or spinal regions. It is a fundamental obligation of every chiropractor to know when to manipulate gently or to avoid chiropractic treatment altogether.

Originally posted at InjuryBoard by Ken Margolin

High Court Ruling-State's Rights and Medicaid Reimbursement

Staff Writer — Sat, 06 May 2006 12:59:44 GMT

Medicaid is a program where an individual unable to afford necessary medical treatment may be eligible to receive state and federal Medicaid benefits. This is true even when another person or entity may be legally responsible to pay one's medical expenses yet the medical bills are unpaid awaiting a jury verdict or a settlement.

Once a settlement or judgment is reached, Medicaid seeks reimbursement of the amounts it paid for medical bills. A landmark ruling from the United States Supreme Court has just clarified the state's rights under the Medicaid program.

Previously, if, for example, a person applies to Medicaid for benefits and the state pays out say $50,000. The injured party sues a legally responsible party and obtains a settlement in the amount of $60,000. The practice historically was that the state would receive fifty of the sixty thousand--a complete reimbursement of its payments--leaving the injured party with ten thousand dollars. The settlement served to compensate the party for not only medical expenses but also pain and suffering, lost wages, lost future earnings and other recoverable damages.

On May 1, 2006, the Justice Stevens issued the majority opinion of the United States Supreme Court in Arkansas Department of Health and Human Services vs. Heidi Ahlborn clarifying the law with respect to Medicaid liens and a state's right to recovery.

According to the Court, a state is allowed to recoup only that portion of a jury verdict or settlement related to medical expenses or, in the case where the rights of the Medicaid recipient have been assigned to the state, only the portion of the case related to medical expenses will be assigned, the recipient retaining that aspect of the claim relating to lost wages, lost or earning potential, concious pain and suffering and so forth. This means, such as in the prior example, that if the sixty thousand dollar settlement compensated the party for only a portion of the fifty thousand dollars in medical bills, say thirty thousand, and the remaining to lost wages and pain and suffering, the state would receive only thirty thousand in reimbursement--the amount the Plaintiff received for medical bills paid by the state. The claimant would retain the additional twenty thousand that he or she would previously had returned to the state.

This is a very significant holding and should encourage a larger number of earlier resolutions in situations where there are large Medicaid liens, which sometimes have the effect of discouraging settlement, since the claimant had nothing to lose by trying the case to a jury. The lien laws are complex and should be evaluated by someone with experience in this area before accepting an offer to settle in cases where Medicaid or Medicare liens are at issue.

Originally posted at InjuryBoard by Staff Writer

Communication Breakdown Results in Death - Medical Malpractice Settlement

Ken Margolin — Wed, 09 May 2007 09:00:00 GMT

Failures to communicate continue to bedevil the medical profession. Patient deaths and injuries due to communication breakdowns are especially tragic, because the preventative measure, was often as simple as picking up a telephone or sending a note. In an era of multi-million dollar technology and advanced bioscience, person-to-person communication remains a cornerstone of good medical care. Communication failures lead annually to thousands of medication errors and other forms of medical malpractice.

The doctors treating a western Massachusetts woman, did not communicate, and their patient died as a result. After a small mass was discovered in the decedent's stomach during a routine gynecological exam in 1995, she went to a surgeon, who removed it and sent it to the pathology laboratory for analysis. The tumor was found to be malignant, a result that was promptly sent to the woman's surgeon and to her internist. In an appalling case of "it's not my department," neither doctor notified their patient of the potentially lethal malignancy that they knew, but she did not know, was in her body.

For the next four years, the woman made multiple visits to her internist for routine medical reasons. He never mentioned that she had cancer, assuming that the surgeon would have told her. The surgeon decided that it was the internist's responsibility to notify the patient, so he filed the report away, and said nothing. The woman only learned that she had cancer, in 1999, when another doctor, reviewing her file, told her about it. The cancer was finally treated, but by 1999, the cancer had metastasized, resulting in the woman's death in 2005, from the tumor that had been determined to be cancerous in 1995. Although the defense contended that even a prompt diagnosis in 1995 would not have changed the outcome, the internist settled with the patient during trial, and the jury awarded a substantial verdict against the surgeon.

Almost as disgraceful as the neglect of the doctors, was the decision of their malpractice insurer to force the case to trial. The insurance industry loves to complain about out of control costs related to medical malpractice. A large cost results when insurance companies force cases to trial on causation defenses, even in the face of appalling medical negligence. The case was reported in last week's Massachusetts Lawyers Weekly newspaper.

Originally posted at InjuryBoard by Ken Margolin

Charitable Immunity - a Failed Principle

Ken Margolin — Tue, 17 Apr 2007 11:05:00 GMT

Most catastrophic instances of medical malpractice, are due as much to systemic failures, as to the negligence of any individual. Yet, you will never see a hospital as a defendant in a Massachusetts malpractice jury trial. The hospital - almost all in Massachusetts are non-profit corporations - will not have been named in the lawsuit, or will have been dropped before trial. Regardless of the enormity of the institution's negligence, it is protected by Massachusetts' charitable immunity statute. The law caps the tort liability of a non-profit corporation, at $20,000.

Massachusetts personal injury lawyers learned some years ago, the danger of leaving a charitable organization in a medical malpractice lawsuit, by learning what befell one of the state's premiere malpractice firms, and its client. In a trial against two physicians and the hospital, the jury awarded a seven figure verdict against the hospital, and granted defendants' verdicts to the doctors. The jury, which is not informed of the tort cap, probably felt sympathetic to both the plaintiff and the physicians, but not to the large corporation. As a result of the charitable immunity law, the verdict was automatically reduced to $20,000. No experienced Massachusetts personal injury lawyer will leave the non-profit institution as a defendant if a case proceeds to trial.

Fortunately, the charitable immunity law does not extend to individual employees. Thus, a plaintiff is not deprived of a remedy, but may be deprived of a remedy against potentially the most appropriate defendant. The law has outlived its usefulness. Many hospitals today are billion dollar entities, with CEOs earning hundreds of thousands of dollars, even millions of dollars per year. Most harmful, though, is that the charitable immunity law, defeats the role of lawsuits and the jury system in forcing needed systemic changes. It is too easy for an institution to delude itself that its procedures were adequate, if it is not directly the object of a significant plaintiff's verdict.

Originally posted at InjuryBoard by Ken Margolin

Fake Studies for Medical Malpractice Defense

Ken Margolin — Mon, 09 Apr 2007 11:20:00 GMT

Today's Boston Globe carried an article with the title, "Bed sores aren't always a sign of negligent care." Having written blogs on this site, suggesting that severe pressures sores are usually caused by nursing home negligence, I read the Globe piece carefully (the law firm of Stark & Stark, has an excellent blog on the subject). My radar went up when I read the sentence that
"[T[he sentiment [that all serious bed sores are avoidable with proper care] was so strong that numerous nursing homes paid large legal settlements to families of patients who developed the sores...." The implication was that the settlements should not have been paid, and that the cases should have been defended based upon the "new findings" of some researches that "[A]t least some pressure ulcers are unavoidable." Those findings may be true, given the broad scope of "at least some....," but I will not be surprised if the studies commented upon in the Globe article, appear before juries considering nursing home negligent cases involving bed sores. I will be equally unsurprised to see the authors of these studies, retained as testifying experts, by nursing home defendants.

"Don't believe everything you read," has always been good advice. That may be especially true if an article in a prestigious medical journal, reads as if it were designed for insurance lawyers defending medical malpractice defendants - it may have been. Many members of the plaintiffs' bar have long suspected that articles and studies have been crafted to aid defendants in cerebral palsy medical malpractice cases, and cases of erb's palsy due to shoulder dystocia caused by negligent delivery. I encountered the phenomenon personally in a case I handled involving a neurologically impaired infant. When the defense listed their experts, there was the name of a doctor renowned for writing a plethora of articles linking various birth traumas to a significantly reduced life span. He was going to testify that my client would not live long, and that costs of care would be far less than we claimed. When I checked this man out further, it appeared that he had been often exposed as a well-credentialed shill for medmal insurers, and that he rode his articles to a lucrative career in defense testimony (he never testified in my case). The practice of writing articles designed to aid malpractice defendants, rather than to advance science, is cynical and unethical. Plaintiffs' lawyers need to be familiar with the peer-reviewed literature relevant to their case, and to be wary of articles written with medmal defendants in mind.

Originally posted at InjuryBoard by Ken Margolin